Wallace v. Baldwin et al

Filing 10

MEMORANDUM AND ORDER: IT IS THEREFORE ORDERED that the request for issuance of a temporary restraining order in Plaintiffs Motion for a Temporary Restraining Order and/or Preliminary Injunction (Doc. 8) is DENIED. This Court RESERVES a decision on th e Motion (Doc. 8) to the extent it requests a preliminary injunction. IT IS FURTHER ORDERED that Plaintiffs Motion for Leave to Proceed In Forma Pauperis (Doc. 6) is DENIED. Plaintiff shall pay the full filing fee of $400.00 for this action within thirty (30) days of the date of entry of this Order (on or before August 4, 2017). If Plaintiff fails to comply with this Order in the time allotted by the Court, this case will be dismissed. Signed by Judge David R. Herndon on 7/5/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MAURICE L. WALLACE, #R10764,
Plaintiff,
vs.

Case No. 17-cv-0576-DRH

JOHN BALDWIN,
KIMBERLY BUTLER,
MIKE ATCHISON,
JOHN/JANE DOE, and
ILLINOIS DEPARTMENT OF
CORRECTIONS,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
This action is before the Court to address Plaintiff’s Motion for a
Temporary Restraining Order and/or Preliminary Injunction (Doc. 8) and Motion
for Leave to Proceed In Forma Pauperis (“IFP”) (Doc. 6).
Motion for Temporary Restraining Order and/or Preliminary Injunction
Plaintiff seeks issuance of a temporary restraining order (“TRO”) and/or
preliminary injunction. A TRO is an order issued without notice to the party to be
enjoined that may last no more than fourteen days. A TRO may issue without
notice:
only if (A) specific facts in an affidavit or a verified complaint clearly
show that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in
opposition; and (B) the movant’s attorney certifies in writing any
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efforts made to give notice and the reasons why it should not be
required.
FED. R. CIV. P. 65(b). “The essence of a temporary restraining order is its brevity,
its ex parte character, and . . . its informality.” Geneva Assur. Syndicate, Inc. v.

Medical Emergency Servs. Assocs. S.C., 964 F.2d 599, 600 (7th Cir. 1992). In
addition to the immediate and irreparable damage requirement for a TRO, to
justify issuance of preliminary injunctive relief, the plaintiff must first
demonstrate that 1) he has a reasonable likelihood of success on the merits, 2) he
has no adequate remedy at law, and 3) he will suffer irreparable harm if
preliminary injunctive relief is denied. See Stifel, Nicholaus & Company, Inc. v.

Godfre & Kahn, 807 F.3d 184, 193 (7th Cir. 2015).
Without expressing any opinion on the merits of any of Plaintiff’s other
claims for relief, the Court concludes that a TRO should not issue in this matter.
Plaintiff’s allegations do not set forth specific facts demonstrating the likelihood of
immediate and irreparable harm before Defendants can be heard. Plaintiff alleges
that he has been confined in disciplinary segregation for more than ten years.
(Doc. 5, p. 23). He claims that this confinement has intensified the symptoms he
experiences in conjunction with his post-traumatic stress disorder (“PTSD”).
(Doc. 5, p. 18). He notes that these symptoms may include nightmares, severe
anxiety, and suicidal ideations, among other things. Id. Plaintiff has provided the
Court with his recent mental health records to support his claim, and though they
seem to confirm that Plaintiff has been diagnosed with PTSD and suffers from
anxiety and depression, they also repeatedly signal that Plaintiff has not recently
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demonstrated or reported suicidal ideations from which he may be suffering
currently. (See Doc. 7, p. 81, 83, 85, 107).
In his Amended Complaint (Doc. 5), Plaintiff also provides the Court with
studies and findings concerning the potential negative effects of prolonged
segregation on an individual, seemingly in an attempt to support his claim that he
will suffer irreparable injury if he is not removed from segregation, but what
studies and statistics indicate might happen to individuals in situations similar to
Plaintiff is not of interest to this Court when considering Plaintiff’s motion for
preliminary injunctive relief. All that concerns this Court is what harm to Plaintiff
is occurring or imminent. Plaintiff has not alleged to this Court’s satisfaction any
risk of immediate and irreparable injury, loss, or damage that will befall him
before any of the defendants can be heard in opposition to his motion. Further,
he readily admits that he “will certainly require years of professional therapy
before [he] can confidently reclaim his status as a ‘civilized human being’” after
being subjected to such extreme isolation, so it appears unlikely that ordering
immediate action will benefit Plaintiff in any significant way. (Doc. 5, p. 26).
Moreover, federal courts must exercise equitable restraint when asked to
take over the administration of a prison, something that is best left to correctional
officials and their staff.

See Sandin v. Conner, 515 U.S. 472, 482 (1995); Rizzo

v. Goode, 423 U.S. 362, 379 (1976) (noting that where a plaintiff requests an
award of remedial relief that would require a federal court to interfere with the
administration of a state prison, "appropriate consideration must be given to

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principles of federalism in determining the availability and scope of [such]
relief.").

Particularly because of Plaintiff’s previous prison staff assault and

weapons violations, and admitted violent, asocial, and aggressive tendencies, this
Court is extremely hesitant to direct Plaintiff’s transfer from disciplinary
segregation without at least allowing the defendants an opportunity to defend their
decision to continue to hold Plaintiff. (Doc. 5, pp. 24, 27).
Plaintiff’s request for issuance of a temporary restraining order will
therefore be denied. This Court will reserve a decision on the Motion (Doc. 8) to
the extent it requests a preliminary injunction.
Motion for Leave to Proceed I n Forma Pauperis
According to Section 1915(g), a prisoner may not bring a civil action or
appeal a civil judgment in forma pauperis “if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.”

28

U.S.C. § 1915(g).
Plaintiff has received strikes in at least three cases in this District. See

Wallace v. Powers, Case No. 09-cv-224-DRH (S.D. Ill. November 19, 2009)
(dismissed for failure to state a claim upon which relief may be granted); Wallace

v. Hallam, Case No. 09-cv-418-DRH (S.D. Ill. Feb. 23, 2010) (same); Westefer v.
Snyder, et al., Case No. 00-cv-162-GPM (S.D. Ill. Feb. 25, 2011) (denying

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Plaintiff’s motion to intervene and assessing strike for filing frivolous action). In
fact, because of his voluminous frivolous filings, Plaintiff has been given at least
one warning about filing frivolous papers or actions in this District. See, Wallace

v. Taylor, Case No. 11-cv-332-MJR (S.D. Ill. June 6, 2012) (Doc. 29, p. 2).
Because Plaintiff has incurred at least three “strikes” for purposes of Section
1915(g), he may not proceed IFP in this case unless he is under imminent danger
of serious physical injury.
Plaintiff has failed to satisfy this requirement. The United States Court of
Appeals for the Seventh Circuit has explained that “imminent danger” within the
meaning of 28 U.S.C. § 1915(g) requires a “real and proximate” threat of serious
physical injury to a prisoner.

Ciarpaglini v. Saini, 352 F.3d 328, 330

(7th Cir. 2003) (citing Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002)).
In general, courts “deny leave to proceed IFP when a prisoner’s claims of
imminent danger are conclusory or ridiculous.” Id. at 331 (citing Heimermann v.

Litscher, 337 F.3d 781, 782 (7th Cir. 2003)). Additionally, “[a]llegations of past
harm do not suffice” to show imminent danger; rather, “the harm must be
imminent or occurring at the time the complaint is filed,” and when prisoners
“allege only a past injury that has not recurred, courts deny them leave to
proceed IFP.” Id. at 330 (citing Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir.
1996)).

Further, “[t]his Court has previously observed that a prisoner cannot

‘create the “imminent danger” required by § 1915(g).’”

See Widmer v. Butler,

Case No. 14-cv-874-NJR, 2014 WL 3932519 (S.D. Ill. August 12, 2014) (citing

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Taylor v. Walker, Case No. 07-cv-706-MJR, 2007 WL 4365718 (S.D. Ill. Dec. 11,
2007) (citing Ball v. Allen, Case No. 06-cv-0496, 2007 WL 484547 (S.D. Ala. Feb.
8, 2007); Muhammed v. McDonough, Case No. 06-cv-527, 2006 WL 1640128
(M.D. Fla. June 9, 2006); Wallace v. Cockrell, Case No. 03-mc-98, 2003 WL
22961212 (N.D. Tex. Oct. 27, 2003))).
In this case, Plaintiff’s Amended Complaint (Doc. 5), as well as his Motion
for Leave to Proceed IFP (Doc. 6), are devoid of allegations that might lead the
Court to conclude that Plaintiff is under imminent danger of serious
physical injury. Plaintiff’s relevant allegations, regarding the PTSD symptoms he
experiences and the potential psychological, social, and physical harms that those
in segregation may face, are outlined above. None of them satisfy the relevant
standard.

Notably, the Seventh Circuit has recently indicated, contrary to

Plaintiff’s apparent proposition that prolonged segregation necessarily violates the
rights of inmates, that there are many factors to consider when determining
whether the conditions of a prisoner’s confinement are unconstitutional, and the
length of time in segregation is not a determinative one. Isby v. Brown, 856 F.3d
508, 524 (7th Cir. 2017) (“While, as a personal matter, we (like the district court)
find the length of Isby's confinement [over ten years] greatly disturbing, see, e.g.,

Davis v. Ayala, ––– U.S. ––––, 135 S.Ct. 2187, 2208–10, 192 L.Ed.2d 323
(Kennedy, J., concurring) (discussing “[t]he human toll wrought by extended
terms of isolation”), reh'g denied, ––– U.S. ––––, 136 S.Ct. 14, 192 L.Ed.2d 983
(2015), we agree that under the law as it currently stands, Isby has not made out

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an Eighth Amendment violation”). Further, as previously noted, Plaintiff has not
cited any physical injury looming over him. The closest he comes to doing so is
mentioning the suicidal ideation that accompanies PTSD, which he has been
diagnosed with, but his medical records, failure to allege that he is currently
considering suicide, and the general requirement that a prisoner cannot create the
imminent danger required by § 1915(g) all run against allowing this particular
potential threat to result in Plaintiff’s IFP Motion being granted. Finally, Plaintiff’s
IFP Motion contains language that indicates that Plaintiff is actually protected
from harm from others given his current housing assignment of disciplinary
segregation, which is puzzlingly the exact situation he seeks to be freed from in
his TRO Motion (Doc. 8). (Doc. 6, p. 12).
The Court concludes that Plaintiff has not shown that he is under
imminent danger of serious physical injury so as to escape the “three-strikes” rule
of Section 1915(g), thus he cannot proceed IFP in this case.
Affidavit (Doc. 9) Filed June 30, 2017
Plaintiff’s most recent filing, detailing an incident in which other inmates
threw a “vile combination of (spoiled milk, blood, saliva, feces, amongst other
things) . . . seriously contaminating both [Plaintiff] and nearly everything else
within [his] cell” does not change the analysis for either motion considered herein.
(Doc. 9, p. 2). Setting aside the fact that the allegations in this affidavit exceed the
scope of the Amended Complaint, which could prevent this Court from
considering their effect on either motion, in the affidavit, Plaintiff indicates that he

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has been moved to a cell with a solid door from his previous cell that had bars,
seemingly to prevent such an event from recurring. Id. Any danger he may have
faced from projectile fluids being thrown into his cell due to its location and
construction has therefore passed and can no longer be considered imminent or
immediate. Further, as Plaintiff has noted at length, he is currently assigned to a
single cell in disciplinary segregation, which is a “barrier preventing [him] from
being violently assaulted and/or ravished.” (Doc. 6, p. 12).
Disposition
IT IS THEREFORE ORDERED that the request for issuance of a
temporary restraining order in Plaintiff’s Motion for a Temporary Restraining
Order and/or Preliminary Injunction (Doc. 8) is DENIED. This Court RESERVES
a decision on the Motion (Doc. 8) to the extent it requests a preliminary
injunction.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to Proceed In

Forma Pauperis (Doc. 6) is DENIED.

Plaintiff shall pay the full filing fee of

$400.00 for this action within thirty (30) days of the date of entry of this Order
(on or before August 4, 2017). If Plaintiff fails to comply with this Order in the
time allotted by the Court, this case will be dismissed. See FED. R. CIV. P. 41(b);

Ladien v. Astrachan, 128 F.3d 1051, 1056-57 (7th Cir. 1997); Johnson v.
Kamminga, 34 F.3d 466, 468 (7th Cir. 1994).
Plaintiff’s obligation to pay the filing fee for this action was incurred at the
time the action was filed, thus the filing fee for this case remains due and

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payable—and will be collected one way or another. See 28 U.S.C. § 1915(b)(1);

Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Finally, Plaintiff is FURTHER ADVISED that he is under a continuing
obligation to keep the Clerk and each opposing party informed of any change in
his address, and that the Court will not independently investigate his
whereabouts. This shall be done in writing and not later than seven (7) days after
a transfer or other change in address occurs. Failure to comply with this order
will cause a delay in the transmission of court documents, and may result in a
dismissal of this action for want of prosecution.
IT IS SO ORDERED.

Digitally signed by
Judge David R. Herndon
Date: 2017.07.05
10:39:56 -05'00'

DATED: July 5, 2017

United States District Judge

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